Supreme Club

At last count, there were about 200 law schools in the United States accredited by the American Bar Association, but apparently only two of them — Harvard and Yale — can be a path to serving on the highest court in the land.

It was surprising enough to see that with the retirement of Justice John Paul Stevens, the Supreme Court will not have a single Protestant among its black-robed elite. But equally jaw-dropping was the fact that without Stevens, every member of the court has attended Harvard or Yale law school.

Well-a Boola, Boo, Boola, and Fair Harvard Holds Sway and all that, but enough with the Ivy Curtain. This club needs some air, or at least a breeze from another campus.

Over the years, the nine people with final say over the laws of the land have come to look more like the rest of America. Groups that were long excluded now point with pride to Jews, blacks, Italian-Americans and a Latina on the court. Gays and Asians are clamoring for a voice.

Perhaps it’s time for one more bit of entitled diversity: a seat reserved for somebody who didn’t go to Harvard or Yale.
Stevens, one of four moderates on the Court, has held that seat. He is not just the last World War II veteran to serve, but as a product Northwestern University Law School, he succeeded a very iconoclastic justice, William O. Douglas, whose law school days were not spent in Cambridge or New Haven. Douglas worked as a waiter, janitor and high school teacher, and decided on a career in law only after spending days in the hot sun of Yakima Valley picking cherries. He went to Whitman College in Walla Walla, Wash., and then worked his way through law school at Columbia. (O.K., he had a teaching stint at Yale Law School, but everyone makes their youthful mistakes.)

Clearly, Harvard and Yale need no extra seats at the high end of American power.

President Obama, Harvard Law, class of ‘91, “wants somebody who has a sense of what real life is like in America,” said Senator Patrick Leahy last week. Real life, hmm? Name somebody outside of the Axis of Ivy, someone who didn’t learn to chant, “That’s all right, that’s O.K., you’re gonna work for us someday,” while losing to a state school in hockey.

I’m not arguing to set aside a seat for mediocrity, as was done when President Nixon nominated a segregationist with a below-average legal mind, G. Harrold Carswell, prompting one senator to say that mediocre people “are entitled to a little representation.”

Nor do I see much merit in the mindless elite-bashing practiced by people who drop their g’s and strut a showy ignorance for the sake of cable television ratings. We should celebrate smart, accomplished people. The kind of elites who do deserve derision are politicians who feign populism while demanding that “the private aircraft must be a Lear 60 or larger,” for travel to their appearances, and a bendable straw at the lectern, as the Sarah Palin contract found in a California dumpster this week stipulated.

But clearly, Harvard and Yale need no extra seats at the high end of American power. The law school at Yale is currently represented by three justices — Sonia Sotomayor, Clarence Thomas and Samuel Alito — the latter two nominated by George H.W. Bush, Yale University class of ’48, and George W. Bush, Yale University ’68, Harvard Business School ’75.

Five sitting justices have gone to Harvard Law School — John Roberts, Anthony M. Kennedy, Antonin Scalia, Ruth Bader Ginsburg (though she transferred to Columbia) and Stephen G. Breyer. Three of them were appointed by presidents who went to Harvard or Yale. That’s an Ivy inside straight, a picture of narrow-minded exclusivity that defies the meritocratic ideals of this big land.

I’m not sure just how much attention the rights of an average citizen get in legal seminars at Harvard and Yale, but judging by the majority voting block on the current court, very little. This court, activist conservative in the extreme, has never met a corporation it has not coddled, nor a prosecution argument that does not have superior merit. In criminal proceedings, the state is nearly always right, and in commercial matters those with the most power continue to prevail.

There is no guarantee, of course, that picking someone from another law school will change the troubling direction of a corporatist court. But new voices, schooled by professors, from locales where life isn’t always a bubble of fellow geniuses, is the kind of rejuvenation this Ivy alumni association needs.

The current choices, for the most part, are more of the same. Elena Kagan, the solicitor general, is said to be the front-runner. And what did she do in the real world? Until recently, she was dean of Harvard Law. There’s also Merrick B. Garland, the appeals court judge highly regarded by some Republicans who went to — you guessed it — Harvard Law School.

At least one name on the short list, Federal Judge Sidney Thomas, of Billings, Mont., looks like an intriguing outsider. He was born in Bozeman, got his law degree at the University of Montana in Missoula and he . . . oh, forget it. He ought to know better than most: the door to the modern Supreme Court is closed to anyone from the wrong school.

Editors’ note: An earlier version of this piece had George W. Bush graduating from Yale in 1969; it was in 1968.

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Timothy Egan worked for The Times for 18 years – as Pacific Northwest correspondent and a national enterprise reporter. His column on American politics and life as seen from the West Coast appears here on Fridays. In 2001, he was part of the Pulitzer Prize-winning team that wrote the series “How Race Is Lived in America.” He is the author of several books, including “The Worst Hard Time,” a history of the Dust Bowl, for which he won the National Book Award, “The Big Burn: Teddy Roosevelt and the Fire That Saved America” and, most recently, “Short Nights of the Shadow Catcher: The Epic Life and Immortal Photographs of Edward Curtis.” As of October 2013, Timothy Egan’s column can be found in a new location in the Opinion section »